New York's elective judicial
process may never be quite the
same. Two recent developments
were in the works for some time, but
another caught even insiders by surprise.

As expected, Chief Judge Judith
Kaye announced in her State of the
Judiciary address Feb. 6 that the Court
of Appeals had approved rules establishing
independent screening panels
for all elective judicial positions. Also
as expected, she announced the
release of the Feerick Commission's
third and final report on judicial elections,
which focused exclusively on
the judicial nominating convention
system. The Commission to Promote
Public Confidence in Judicial Elections,
chaired by former Fordham Law
School Dean John D. Feerick, previously
issued reports in December
2003 and June 2004.

The unexpected backdrop for both
announcements, however, was the
decision of a federal District Court just
one week earlier that declared New
York's convention system unconstitutional
and enjoined its use, directing
that primaries be held to choose candidates
for the state Supreme Court
until the legislature acts. However the
developments in that case ultimately
unfold, the new rules approved by the
Court of Appeals and the latest commission
recommendations also significantly
affect the status quo.

The new rules, based on earlier Feerick
Commission reports, create a
statewide system of judicial election
qualification commissions, independent
bodies to evaluate early on all those
seeking elective judicial office. The
commissions will publish a list of those
found qualified as well as those who
declined to participate; the information
will also be available in official voter
guides. A 15-member commission will
be established in
each judicial district, with members
appointed by the Chief Judge, the Presiding
Justice of the respective Appellate
Division, and bar associations.

The rules specify the following
criteria for candidate evaluation:
professional ability; character, independence
and integrity; reputation
for fairness and lack of bias; and
temperament, including courtesy
and patience.

The independent panels are
intended to provide the public with a
measure of confidence in the qualifications
of judicial candidates,
about whom the public generally
knows very little.

The newly-adopted rules implement
other recommendations from
earlier Feerick Commission reports,
including: limiting what judicial candidates
may pay for tickets to political
functions; prohibiting the use of
campaign funds for campaign-related
goods and services for which fair
value was not received; requiring
judicial candidates to complete a
campaign ethics program; and reconciling
state judicial conduct rules
with recent U.S. Supreme Court cases
involving campaign speech.

The latest report recommends
changes in the convention system
by which political parties select
Supreme Court justice nominees.
Currently, parties hold September
primaries to elect delegates who
meet and select the nominees who
appear on the ballot. The commission
found that this process reinforces
public perception that
delegates rubber-stamp the party
leaders' choices. Absent public campaign
financing, a costly direct primary
system is not preferable
because it undermines public confidence
to see incumbent judges
engaged in fundraising — potentially
among lawyers who appear
before them.

Instead, the report recommends
amending the Election Law to make
conventions a more open and deliberative
process. Proposals to promote
delegate independence and encourage
candidates without party support
include smaller conventions with
fewer delegates; three-year terms; earlier
delegate elections; more candidate
information; and reduced
petition requirements.
The report is available at:
www.nycourts.gov/reports.